Opinion analysis: States prevail on breath (but not blood) tests without a warrant

Posted Thu, June 23rd, 2016 3:49 pm by Amy Howe

Laws in twelve states that impose criminal penalties on suspected drunk drivers who refuse to take a breath test to measure the alcohol in their bodies got a nod from the Supreme Court today. On a day that saw the Court deadlock in two cases, six of the Court’s eight Justices agreed that such laws do not violate the Fourth Amendment’s ban on unreasonable searches. But today was not a complete victory for the states: seven Justices also agreed that laws which impose criminal penalties for failing to take a blood test violate the Constitution.

In an opinion by Justice Samuel Alito, the Court began by noting the dilemma in which states had found themselves. Drunk driving takes “a grisly toll,” killing thousands of people every year and injuring scores more. To fight this problem, all fifty states have enacted laws that are known as “implied consent” laws: by driving on a state’s roads, you are deemed to have consented to testing if you are suspected of drunk driving. States have also imposed tougher penalties on drivers who are guilty of driving under the influence. But these stiffer sentences created a problem of their own: drivers, particularly those who have had a lot to drink or have prior drunk driving convictions, may opt to refuse the tests, because the consequences of doing so may be less severe than what they would face if convicted of drunk driving. This quandary led twelve states, including North Dakota and Minnesota, to pass laws that would make it a crime to refuse alcohol testing.

Under the Supreme Court’s earlier cases, the Court explained, the alcohol testing is clearly a search for purposes of the Fourth Amendment, for which a warrant would normally be required. However, a search without a warrant does not violate the Fourth Amendment if it falls within one of certain exceptions. And dating as far back as the colonial era, the Court observed, police officers have had the authority to conduct a search of a person whom they are arresting. But, the Court added, there is no “definitive guidance” from the era in which the Constitution was drafted that sheds any light on whether the Founding Fathers would have allowed a blood or breath test of a suspected drunk driver in conjunction with his arrest. Without that guidance, the Court ruled two years ago in a case involving the search of an arrestee’s cellphone, courts should instead look at the extent to which the search intrudes on the privacy of the person who is being arrested, as well as the extent to which the search is needed to promote “legitimate governmental interests.”

For breath tests, the Court concluded, the balance weighs in favor of allowing them without a warrant. There is no real physical intrusion on the driver’s body from the breath test, the Court explained. “The effort is no more demanding than blowing up a party balloon.” Breath tests provide police with only one piece of information – the concentration of alcohol in the driver’s breath – and police do not (because of the very nature of breath tests) retain a sample. On the other side of the equation, testing suspected drunk drivers is an important state weapon to fight drunk driving, while requiring a warrant to test every suspected drunk driver would swamp local courts without creating extra benefits – after all, the facts that would provide the kind of probable cause needed for a warrant would be “largely the same from one drunk-driving stop to the next,” as would the tests themselves.

By contrast, the Court concluded today, blood tests do not pass constitutional muster. Although they too play an important role in the war on drunk driving, they are “significantly more intrusive” than breath tests: they require the technician taking the sample to pierce the driver’s skin, extracting a sample that provides law enforcement officials with more information than a breath test, and which they can retain.

Justice Sonia Sotomayor agreed with the majority that the Constitution does not allow blood tests without a warrant, but she would have ruled that the breath tests also require a warrant. In an opinion that was joined by Justice Ruth Bader Ginsburg, Sotomayor acknowledged that states “must have tools to combat drunk driving.” But she saw no reason why requiring a warrant for breath tests would thwart these efforts. Among other things, she noted, there is already a significant lag time between when police make a drunk-driving arrest and when a breath test is administered; police officers could easily seek a warrant during “this built-in window,” she suggested.

Justice Clarence Thomas also parted ways with the majority, but for essentially the opposite reason as Sotomayor: in his view, neither the breath nor the blood test should require a warrant. Alcohol naturally dissipates from the driver’s bloodstream over time, which in his view creates the kind of “exigent circumstances” for which the Supreme Court has carved out another exception to the Fourth Amendment’s general warrant requirement. Therefore, Thomas concluded, once police officers believe that a driver is intoxicated, he reasoned, no warrant is needed to test the concentration of alcohol in his body.

Today’s decision will mean different things for the three men – Danny Birchfield and Steve Beylund of North Dakota and William Bernard of Minnesota – who challenged their convictions. Birchfield fared the best: he was convicted for refusing to have his blood tested without a warrant, so his conviction will fall. Bernard’s conviction will stand, because he was convicted for refusing to take a breath test. And Beylund agreed to (and then failed) a blood test after police had told him that he had no choice other than to take it. His case will now go back to the lower courts for them to consider whether his consent to the test was actually voluntary when, as the Court held today, the state could not actually require him to take the blood test.

More broadly, the Court’s ruling upholding breath tests without a warrant likely will take much of the sting out of its ruling against the states on the blood tests, as we can expect to see police officers avoid this problem by resorting to breath tests whenever possible. And with the Court having given a fairly resounding seal of approval to the breath tests, I would also expect to see more states adopt criminal penalties for refusing the breath tests soon.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.